FAMILY AND MEDICAL LEAVE Authority: Family and Medical Leave Act (“FMLA”) (29 U.S.C.§ 2601, et seq.); New Jersey Family Leave Act (“NJFLA”) (N.J.S.A. 34:11 B-1, et seq.); and New Jersey Security and Financial Empowerment Act” (“NJSAFE”) (N.J.S.A. 34:11C-2, et seq.). Policy A leave of absence may be granted in accordance with the provisions and requirements of the FMLA, FLA, and/or NJSAFE or as otherwise provided by law or RVCC Policy. I. THE FAMILY AND MEDICAL LEAVE ACT OF 1993 The Family and Medical Leave Act (“FMLA”) entitles eligible employees to take up to twelve (12) weeks of job-protected leave in a twelve (12) month period for specified family and medical reasons.1 The law contains provisions on employer coverage; employee eligibility for the law’s benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. 1. EMPLOYEE ELIGIBILITY To be eligible for FMLA benefits, an employee must: a) have worked for RVCC for a total of twelve (12) months; and b) have worked at least 1,250 hours (including overtime) over the previous twelve (12) months (subject to special rules applicable to returning reservists pursuant to the Uniformed Services Employment and Reemployment Rights Act); and c) work at a site where the employer employs 50 or more employees within a 75 mile radius of the site. The Vice President of Human Resources will determine if the employee meets the eligibility requirements. 2. LEAVE ENTITLEMENT An eligible employee may take up to a total of twelve (12) work-weeks of FMLA leave during a twelve (12) month period for one or more of the following reasons: Incapacity due to pregnancy, prenatal medical care, or child birth; To care for the employee’s child after birth, or placement with the employee of a child for adoption or foster care; To care for an immediate family member (spouse, child, or parent) with a serious health condition; To take medical leave when the employee is unable to work because of a serious health condition; In order to address certain qualifying exigencies while the employee’s spouse, son, daughter, or parent is on (or has been notified of) covered active duty or call to 1 An eligible employee may utilize up to twenty-six (26) weeks of FMLA leave for care of a covered servicemember with a serious injury or illness. 1 covered active duty status (including, but not necessarily limited to addressing issues arising from short-notice deployment, attending certain military events, arranging for alternative child care or school, addressing certain financial and legal arrangements, attending certain counseling sessions, attending post-deployment briefings, arranging for parental care, to spend time with a military member on rest and recuperation leave (up to 15 days), etc.); or To care for a covered service member with a serious illness or injury (up to 26 weeks during a single 12-month period).2 RVCC will calculate the twelve (12) month FMLA “leave year” as the twelve (12) month period forward of the date FMLA leave is first taken.3 When an employee takes leave for a reason covered by the New Jersey Family Leave Act (“FLA”) and the FMLA, the leave shall be simultaneously counted against an employee’s entitlement under both statutes to the extent permitted by law. FMLA leave will also run concurrently with any available disability and/or New Jersey Family Temporary Disability Insurance (“NJFTDI”) benefits. Additional information about NJFTDI and disability benefits is available from Human Resources. Spouses employed by RVCC are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.4 Leave for birth and care or placement for adoption or foster care must conclude within twelve (12) months of a birth or placement. 3. Intermittent and Reduced Schedule Leave Under some circumstances, employees may take FMLA leave intermittently, which means taking leave in separate blocks of time due to a single qualifying reason, or on a reduced schedule leave, which means reducing their normal weekly or daily work schedule. If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent or reduced schedule leave is subject to RVCC approval. 2 A “covered servicemember” is a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness or a covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A “covered veteran” is an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. For an individual who was a member of the Armed Forces (including the National Guard or Reserves) and who was discharged or released under conditions other than dishonorable prior to March 8, 2013, the period between October 28, 2009 and March 8, 2013 shall not count towards the determination of the five-year period for covered veteran status. 3 In the case of leave to care for a covered service member (including covered veteran), the twenty-six (26) week period will be calculated forward of the first such leave taken. The definition of “serious injury or illness” is different than the definition of “serious health condition.” Refer any questions to Human Resources. 4 In the case of military caregiver leave, spouses employed by Raritan Valley Community College are jointly entitled to a combined total of 26 weeks of such FMLA leave. 2 4. FMLA leave may be taken intermittently or on a reduced schedule whenever medically necessary to care for a seriously ill family member or covered service member, for a qualifying exigency relative to deployment of a spouse, son, daughter, or parent, or because the employee is seriously ill and unable to work. When FMLA leave is taken intermittently or on a reduced leave schedule for foreseeable planned medical treatment or if RVCC permits for birth or placement of a child, RVCC may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent or reduced leave schedule. Once the reduced schedule or intermittent leave is no longer necessary, the employee will be returned to the same or equivalent job he/she held when the leave commenced. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt RVCC’s operations. Pay While on Leave FMLA leave will be unpaid unless the employee has and elects to utilize any applicable earned paid time off during FMLA leave. Once any applicable paid time off which the employee elects to use concurrently with FMLA leave is exhausted, the remainder of the FMLA leave will be unpaid. Likewise, if the employee does not elect to use any applicable paid time off during FMLA leave, the FMLA leave will be unpaid. RVCC, through Human Resources, is responsible for designating an employee’s use of paid leave as FMLA leave, based upon information from the employee. 5. Health Conditions A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three (3) consecutive calendar days combined with at least two (2) visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy,5 or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment. “Health Care Provider” for purposes of the FMLA means: Doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or Podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice under state law; or 5 Prenatal care also qualifies as a “serious health condition” under the FMLA. 3 6. Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants authorized to practice, and performing within the scope of their practice, as defined under State law; or Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or Any health care provider recognized by RVCC or RVCC’s group health plan benefits Manager. MAINTENANCE OF HEALTH BENEFITS During FMLA leave, the employee’s health insurance coverage will be maintained under the same terms and conditions as if the employee had continued to work. Employees may be required to pay their share of health insurance premiums while on leave, where consistent with applicable collective negotiations agreements, state law, and/or health insurance plans in effect at the time of the leave. Employees who are required to contribute part of the cost of health insurance must make arrangements with RVCC for timely payment of premiums. In some instances, RVCC may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave. 7. JOB RESTORATION Generally, upon return from FMLA leave, the employee will be restored to his/her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. If RVCC should experience a reduction in force or layoff, an employee who would have been affected by such a reduction in force or layoff had he/she not been on FMLA leave is not entitled to be returned to work following exhaustion or completion of FMLA leave, however, the employee retains all rights under any applicable lay off or recall system. 8. MAINTENANCE OF BENEFIT STATUS An employee’s use of FMLA leave will not result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave and FMLA leave will not be considered in discipline related to tardiness and/or attendance. 9. KEY EMPLOYEES Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, RVCC may refuse to reinstate certain highly-paid “key” employees after using FMLA leave during which health coverage was maintained. In order to do so, RVCC will: Notify the employee of his/her status as a “key” employee in response to the employee’s notice of intent to take FMLA leave; Notify the employee as soon as RVCC decides that it will deny job restoration and explain the reasons for this decision; Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and 4 Make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration and notify the employee in writing of that decision. A “key” employee is a salaried “eligible” employee who is among the highest paid ten percent of employees. 10. NOTICE AND CERTIFICATION PROCEDURE Employees seeking to use FMLA leave are required to provide thirty (30) days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. Employees must provide sufficient information for RVCC to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform RVCC if the requested leave is for a reason for which FMLA was previously taken or certified. RVCC may also require employees to provide: Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member; or Certification of Qualifying Exigency; or Second or third medical opinions (at RVCC’s expense) and/or periodic recertification; or Periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and Medical certification of fitness for return to duty. RVCC will notify employees requesting leave whether they are eligible for FMLA leave, and if they are not, the reasons for their ineligibility. If the employee is eligible, the notice will specify any additional information required. Where leave is being designated as FMLA leave, the employee will be so notified in writing. 11. 12. II. NO RETALIATION There shall be no retaliation against any employee for exercising his/her rights under the FMLA and/or for taking leave and no interference with FMLA rights. Any such concerns should be immediately reported to the Vice President of Human Resources or to any manager or supervisor who shall in turn immediately report same to Human Resources. QUESTIONS Any questions regarding this policy or FMLA leave should be directed to Human Resources. THE NEW JERSEY FAMILY LEAVE ACT 5 The New Jersey Family Leave Act (“FLA”) entitles eligible employees to take up to twelve (12) weeks of job-protected leave in a twenty-four (24) month period for specified reasons. The law contains provisions on employer coverage; employee eligibility for the law’s benefits; entitlement to leave; notice and certification of the need for FLA leave; and protection for employees who request or take FLA leave. 1. EMPLOYEE ELIGIBILITY To be eligible for FLA leave, an employee must: Have worked for RVCC for a total of twelve (12) months; and Have worked at least 1,000 hours (including overtime) over the previous twelve (12) months. The Vice President of Human Resources will determine if the employee meets the eligibility requirements. 2. LEAVE ENTITLEMENT An eligible employee may take up to a total of twelve (12) work-weeks of FLA leave during a twenty-four (24) month period for one or more of the following reasons: For the birth of a child of the employee; or For the placement with the employee of a child for adoption; or To care for the employee’s family member (spouse, civil union partner, child, or parent) with a serious medical condition. RVCC will calculate the twenty-four (24) month FLA “leave period” as the twenty-four (24) month period forward of the date FLA leave is first taken. When an employee takes leave for a reason covered by the federal Family and Medical Leave Act (“FMLA”), the leave shall be simultaneously counted against an employee’s entitlement under both statutes to the extent applicable and permitted by law. However, if an employee takes FMLA because of his or her own disability, including a disability related to pregnancy or childbirth, and a family member becomes seriously ill or a child is born or adopted while he or she is still on FMLA disability leave, the intervening birth, adoption, or serious family illness does not convert the FMLA leave to FLA leave. For as long as the employee continues to be eligible for FMLA leave based upon his or her own disability, the leave does not simultaneously count against the employee’s FLA entitlement. After the employee is released by his or her healthcare provider, any remaining FMLA leave will run concurrently with the employee’s FLA leave entitlement. FLA leave will run concurrently with New Jersey Family Temporary Disability Insurance (“NJFTDI”) benefits. Additional information about NJFTDI benefits is available from Human Resources. Leave for birth and care or placement for adoption of a child must be commenced within twelve (12) months of the birth or placement of that child. 3. Intermittent Leave or Reduced Leave Schedule 6 Under some circumstances, employees may take FLA leave intermittently – which means taking leave in blocks of time, or on a reduced leave schedule, by reducing their normal weekly work schedule. If FLA is for birth and care or placement for adoption, use of intermittent or reduced schedule leave is subject to RVCC approval. FLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member. Such intermittent leave may not exceed twelve (12) months. FLA leave may be taken on a reduced leave schedule in increments of not less than one day and for a period not to exceed twenty-four (24) weeks. When FLA leave is taken intermittently or on a reduced leave schedule for foreseeable planned medical treatment or if RVCC permits for birth or placement of a child, RVCC may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent or reduced leave schedule. Once the reduced schedule or intermittent leave is no longer necessary, the employee will be returned to the same or equivalent job he/she held when the leave commenced. When requesting intermittent or reduced schedule leave, employees shall make reasonable efforts to schedule such leave so as not to unduly disrupt operations of RVCC. 4. Pay While on Leave FLA leave will be unpaid unless the employee has and elects to utilize any applicable earned paid time off during FLA leave. Once any applicable paid time off which the employee elects to use concurrently with FLA leave is exhausted, the remainder of the FLA leave will be unpaid. Likewise, if the employee does not elect to use any applicable paid time off during FLA leave, the FLA leave will be unpaid. RVCC, through Human Resources is responsible for designating an employee’s use of paid leave as FLA leave, based upon information from the employee. 5. Health Conditions “Serious health condition” for purposes of the FLA means an illness, injury, impairment or physical or mental condition that requires: Inpatient care in a hospital, hospice or residential medical-care facility; or Continuing medical treatment or continuing supervision by a health care provider. For FLA purposes, “continuing medical treatment or continuing supervision by a health care provider” means: 1. A period of incapacity (that is inability to work, attend school or perform regular daily activities due to a serious health condition, treatment therefore and recovery there from) for more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition that also involves: i. Treatment two or more times by a health care provider; or 7 2. 3. 4. 5. ii. Treatment by a health care provider on one occasion which results in a regimen of continuing treatment under the supervision of a health care provider; Any period of incapacity due to pregnancy, or for prenatal care; Any period of incapacity or treatment for such incapacity due to a chronic serious health condition; Any period of incapacity, which is permanent or long term, due to a condition for which treatment may not be effective (such as Alzheimer’s disease, a severe stroke or the terminal stages of a disease) where the individual is under continuing supervision of, but need not be receiving active treatment by, a health care provider; or Any period of absence to receive multiple treatments (including any period of recovery there from) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity for more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy) or kidney disease (dialysis). “Health Care Provider” for purposes of the FLA means any person licensed under Federal, State or local law, or the laws of a foreign nation, to provide health care services; or any other person who has been authorized to provide health care by a licensed health care provider. 6. MAINTENANCE OF HEALTH BENEFITS During FLA leave, the employee’s health insurance coverage will be maintained under the same terms and conditions as if the employee had continued to work. Employees may be required to pay their share of health insurance premiums while on leave, where consistent with applicable collective negotiations agreements, state law, and/or health insurance plans in effect at the time of the leave. Employees who are required to contribute part of the cost of health insurance must make arrangements with RVCC for timely payment of premiums. 7. JOB RESTORATION Generally, upon return from FLA leave, the employee will be restored to his /her original job or to an equivalent job with like seniority, status, employment benefits, pay and conditions of employment. If RVCC should experience a reduction in force or layoffs, an employee who would have been affected by such a reduction in force or layoff had he/she not been on FLA leave is not entitled to be returned to work following exhaustion or completion of FLA leave, however, the employee retains all rights under any applicable layoff or recall system. RVCC may deny FLA leave to certain of its highest paid 5% of salaried employees to the extent such denial is necessary to prevent substantial and grievous economic injury to RVCC, upon notice to such employee. If such leave has already commenced, such employee shall be given ten (10) working days to return to work. 8 8. NOTICE AND CERTIFICATION When FLA leave is sought due to the birth or placement of a child for adoption, the employee must provide at least thirty (30) days’ notice of the intention to take FLA leave when reasonably practicable. When FLA leave is sought due to a family member’s serious illness, the employee must provide at least thirty (30) days’ notice of the intention to take FLA leave, except where emergent circumstances warrant shorter notice. An employee requesting FLA leave in order to care for the employee’s seriously ill spouse, civil union partner, child, or parent may be required to provide a certification issued by a health care provider supporting the need for the requested FLA leave. 9. NO RETALIATION There shall be no retaliation against any employee for exercising his/her rights under the FLA and/or for taking leave and no interference with FLA rights. Any such concerns should be immediately reported to the Vice President of Human Resources or to any manager or supervisor who shall in turn immediately report same to Human Resources. 10. QUESTIONS Any questions regarding this policy or FLA leave should be directed to Human Resources. III. THE NEW JERSEY SECURITY AND FINANCIAL EMPOWERMENT ACT LEAVE The New Jersey Security and Financial Empowerment Act (“NJSAFE”) entitles eligible employees to take up to twenty (20) days of job-protected leave in a twelve (12) month period to address circumstances resulting from an incident of domestic violence or a sexually violent offense. The law contains provisions on employer coverage; employee eligibility for the law’s benefits; entitlement to leave; notice and certification of the need for NJSAFE leave; and protection for employees who request or take NJSAFE leave. 1. EMPLOYEE ELIGIBILITY To be eligible for NJSAFE leave, an employee must: Have worked for RVCC for a total of twelve (12) months; and Have worked at least 1,000 hours (including overtime) over the previous twelve (12) months. The Vice President of Human Resources will determine if the employee meets the eligibility requirements. NJSAFE leave may be taken by an employee who is a victim of an incident of domestic violence or a sexually violent offense or by an employee whose child, parent, spouse, domestic partner, or civil union partner is a victim of domestic violence or a sexually violent offense. 2. LEAVE ENTITLEMENT 9 An eligible employee may take up to a total of twenty (20) work days of NJSAFE leave in the year following each incident of domestic violence or sexually violent offense for the following reasons: (1) seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee's child, parent, spouse, domestic partner, or civil union partner; (2) obtaining services from a victim services organization for the employee or the employee's child, parent, spouse, domestic partner, or civil union partner; (3) obtaining psychological or other counseling for the employee or the employee's child, parent, spouse, domestic partner, or civil union partner; (4) participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee's child, parent, spouse, domestic partner, or civil union partner from future domestic or sexual violence or to ensure economic security; (5) seeking legal assistance or remedies to ensure the health and safety of the employee or the employee's child, parent, spouse, domestic partner, or civil union partner, including preparing for, or participating in, any civil or criminal legal proceeding related to or derived from domestic or sexual violence; or (6) attending, participating in, or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the employee or the employee's child, parent, spouse, domestic partner, or civil union partner, was a victim. An employee is not entitled to more than twenty (20) days of combined NJSAFE leave in in any twelve (12) month period. When an employee takes leave for a reason covered by NJSAFE, the leave shall be simultaneously counted against an employee’s entitlement under the FMLA and/or the FLA to the extent applicable and permitted by law. NJSAFE leave will run concurrently with any short term disability benefits and/or benefits available under the New Jersey Family Temporary Disability (“NJFTDI”), N.J.S.A. 43:21-25, et seq. 3. Intermittent Leave NJSAFE leave may be taken intermittently in increments of not less than one (1) day. 4. Pay While on Leave 10 NJSAFE leave will be unpaid unless the employee has and elects to utilize any applicable earned paid time off during NJSAFE leave. Once any applicable paid time off which the employee elects to use concurrently with NJSAFE leave is exhausted, the remainder of the NJSAFE leave will be unpaid. Likewise, if the employee does not elect to use any applicable paid time off during NJSAFE leave, the NJSAFE leave will be unpaid. RVCC is responsible, through Human Resources, for designating an employee’s use of paid leave as NJSAFE leave, based upon information from the employee. 5. MAINTENANCE OF HEALTH BENEFITS During NJSAFE leave, the employee’s health insurance coverage will be maintained under the same terms and conditions as if the employee had continued to work. Employees may be required to pay their share of health insurance premiums while on leave, where consistent with applicable collective bargaining agreements and/or health insurance plans in effect at the time of the leave. Employees who are required to contribute part of the cost of health insurance must make arrangements with RVCC for timely payment of premiums. 6. JOB RESTORATION Generally, upon return from NJSAFE leave, the employee will be restored to his/her original job or to an equivalent job with like seniority, status, employment benefits, pay and conditions of employment. 8. NOTICE AND CERTIFICATION Prior to taking NJSAFE leave, the employee must notify RVCC in writing of the need for leave giving as much notice as reasonable and practical under the circumstances. RVCC may require documentation to support the incident of domestic violence or sexually violent offense which is the basis for he leave. The employee will be considered to have provided sufficient documentation if the employee provides one (1) or more of the following: (1) a domestic violence restraining order or other documentation of equitable relief issued by a court of competent jurisdiction; (2) a letter or other written documentation from the county or municipal prosecutor documenting the domestic violence or sexually violent offense; (3) documentation of the conviction of a person for the domestic violence or sexually violent offense; (4) medical documentation of the domestic violence or sexually violent offense; (5) certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or Rape Crisis Center, that the employee or employee's child, parent, spouse, domestic partner, or 11 civil union partner is a victim of domestic violence or a sexually violent offense; or (6) other documentation or certification of the domestic violence or sexually violent offense provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or employee's child, parent, spouse, domestic partner, or civil union partner in dealing with the domestic violence or sexually violent offenses. All information provided in connection with NJSAFE leave shall be retained in the strictest confidentiality, unless the disclosure is voluntarily authorized in writing by the employee or is required by State or federal law, rule or regulation. 9. NO RETALIATION There shall be no retaliation against any employee for exercising his/her rights under the NJSAFE and/or for requesting or taking leave and no interference with NJSAFE rights. Any such concerns should be immediately reported to Human Resources or to any manager or supervisor who shall in turn immediately report same to Human Resources. 10. QUESTIONS Any questions regarding this policy or NJSAFE leave should be directed to Human Resources. S:\CML\Raritan Valley Community College\Final Policies Proposed to Exec Comm 5.9.13\Proposed FMLA.FLA Policy 10.14.13.docx 12